Inter-State Applications under the European Convention on Human Rights: Strengths and Challenges
By Geir Ulfstein and Isabella Risini. This blog post was first published on EJIL: Talk!.
This post provides, in broad strokes, an overview of human rights litigation via the inter-State application procedure under the European Convention on Human Rights (ECHR), as well as its strengths and challenges. In the last seven decades, States have referred 24 situations to the former Commission and to the European Court of Human Rights (ECtHR). Certainly, compared to some 750,000 individual applications, the number looks small. However, the inter-State applications have had an impact for a large number of individuals. Many of the cases also had important political ramifications and shaped the present supervisory architecture of the Convention.
The ECtHR full list of inter-State cases reveals a considerable rise of applications, with currently eight pending sets of proceedings: the 2008 armed conflict between Georgia and the Russian Federation is before the Court in Georgia v Russia II. The case has reached the merits stage, the admissibility decision was taken back in 2011. Georgia v Russia (IV) was lodged in 2018 and is pending at the admissibility stage. It relates to the alleged deterioration of the human rights situation along the boundary between Georgian-controlled territory and Abkhazia and South Ossetia. Ukraine has, since 2014, lodged a total of eight inter-State application against Russia before the ECHR, five of which are currently pending in Strasbourg. In those cases, no formal admissibility decision has been rendered yet. In the case of Ukraine v Russia (re Crimea) the Court had a hearing on the admissibility in September 2019. Slovenia brought a case against Croatia in 2016 that concerns the consequences of the breakup of Former Yugoslavia. In that case, the Court will render an admissibility decision after it held a hearing in June 2019, as anticipated on this blog by Igor Popović. Notably, two of the sets of cases involve Russia and human rights in situations of sovereignty disputes and armed conflict. Overall, the thrust of work in these inter-State proceedings still lies ahead of the Court.
State-to-State litigation based on human rights treaties is on the upswing also in the framework of the Convention on the Elimination of All Forms of Racial Discrimination (CERD). The Committee on the Elimination of Racial Discrimination is currently dealing with three inter-State communications, as David Keane reported on this blog. In the most recent December session, the Committee decided that it has jurisdiction regarding the inter-State communication submitted by the State of Palestine against Israel.
Further, the compromissory clauses of CERD and the Genocide Convention have given rise to a number of cases before the International Court of Justice (ICJ). One set concerns Ukraine v Russia. Ukraine has brought proceedings under the International Convention for the Suppression of the Financing of Terrorism in respect of the events in the eastern part of its territory. With regard to the events in Crimea, Ukraine’s claim is based solely upon CERD. In 2017, after a finding of a prima facie dispute, the ICJ issued provisional measures based on CERD. The addressee of the measures is Russia, with reference to the territory of Crimea, in favor of those individuals affected by Russian policies. Subsequently, the ICJ rendered its judgment on the admissibility on 8 November 2019. The judgment was discussed on this blog by Iryna Marchuk and David Keane. Further, the ICJ is dealing with the Case concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates) based on Article 22 CERD. The Court indicated provisional measures for the United Arab Emirates in 2018. In 2019, the United Arab Emirates addressed the parallel proceedings before the CERD Committee and sought an order by the ICJ against Qatar to immediately withdraw its communication before the treaty body, however, with no avail. Noteworthy is also the State-to-State litigation before the ICJ of the Gambia against Myanmar based on the Genocide Convention. It concerns “acts adopted, taken and condoned by the Government of Myanmar against members of the Rohingya group”. The proceedings have attracted considerable attention on this blog.
The place of the inter-State applications on the ECtHR’s agenda is reflected in the message for the 60thanniversary of the Court by its current president, Linos-Alexandre Sicilianos. Specifically, he underlined that by way of inter-State applications ‘a number of State conflicts have been brought before the Court. He added that “[i]n addition to these inter-State cases there are thousands of individual applications before the Court related to conflict situations”. He thereby highlighted the difficult role for the Court: it must deal with disputes between Member States in conflict and, at the same time, is tasked with the protection of a large number of individuals and their human rights.
Inter-state applications are also the subject of the reform process of the Court (the ‘Interlaken process’). The 2018 Copenhagen Ministerial Declaration commissioned the Committee of Ministers, before the end of 2019, to finalize its analysis of ‘obtaining a balanced case load’, including by:
‘exploring ways to handle more effectively cases related to inter-State disputes, as well as individual applications arising out of situations of inter-State conflict, without thereby limiting the jurisdiction of the Court, taking into consideration the specific features of these categories of cases inter alia regarding the establishment of facts.’ (para. 54 c)
The Court has submitted proposals for a more efficient procedure in inter-State cases. However, the Steering Committee for Human Rights (CDDH) was in its meeting on 18-21 June 2019 not able to agree on a set of recommendations. In its meeting on 26-29 November 2019, the Committee decided to set up a Drafting Group on effective processing and resolution of cases relating to inter-State disputes (DH-SYSC-IV) with a view to submitting proposals to the Committee of Ministers before 31 December 2021.
We will discuss challenges raised by issues of jurisdiction and admissibility, multi-forum litigation, competing sovereignty claims, the relationship to international humanitarian law, the overlap of individual and inter-State cases, and fact-finding in inter-State proceedings.
Jurisdiction and admissibility
Article 33 ECHR provides that ‘[a]ny High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party.’ The provision is a broad entitlement. The jurisdiction of the Strasbourg Court in inter-State cases is compulsory. In comparison to fora like the ICJ or the dispute settlement procedures provided for under the United Nations Convention on the Law of the Sea, Strasbourg is a rather easily accessible forum. Unlike the ICJ (Marshall Islands v. United Kingdom), there is no requirement of a dispute between the parties The ICJ also requires a dispute where its jurisdiction is based on a compromissory clause of a human rights treaty. A genuine allegation of a human rights violation is sufficient to lodge an inter-State application in Strasbourg.
When it comes to admissibility, the ECHR can be described as an example of an erga omnes partesregime. In the words of the International Court of Justice in its 1970 Barcelona Traction judgment, which came only shortly after the emblematic 1969 report in the Greek Case:
[…] on the universal level, the instruments which embody human rights do not confer on States the capacity to protect the victims of infringements of such rights irrespective of their nationality. It is therefore still on the regional level that a solution to this problem has had to be sought; thus, within the Council of Europe … the problem of admissibility encountered by the claim in the present case has been resolved by the European Convention on Human Rights, which entitles each State which is a party to the Convention to lodge a complaint against any other contracting State for violation of the Convention, irrespective of the nationality of the victim.
The admissibility requirements for an inter-State application are relatively low. The Court determines whether, prima facie, the allegations of the applicant Government are ‘wholly unsubstantiated’ (‘pas du tout étayées’) or are ‘lacking the requirements of a genuine allegation in the sense of Article 33 of the Convention’ (‘feraient défaut les éléments constitutifs d’une véritable allégation au sens de l’article 33 de la Convention’), as it clarified in its admissibility decision in Georgia v Russia I (§ 44). The exhaustion of domestic remedies and the six-month rule contained in Article 35 § 1 ECHR may raise procedural issues. The six-month rule does not apply to situations of continuing violations, as in individual cases. However, the requirement of the exhaustion of local remedies merits some attention.
While the requirement to exhaust domestic remedies applies to inter-State applications, substantial exceptions to the rule have been developed in the case law of the Convention organs. These concern legislative measures and administrative practices, thus situations where no effective remedies are easily available.
First, the requirement of exhaustion of domestic remedies is dispensed with if the applicant State alleges that legislation contravenes the Convention, even absent a specific individual victim. Such legislative measures can, for example, be derogations under Article 15 ECHR.
Then, as the Court summarized in its 2014 Georgia v Russia Grand Chamber judgment at § 122 et seq, the notion of administrative practice was developed to address situations where, through official tolerance, remedies against impugned measures are ineffective. Thus, the notion of administrative practice dispenses with the need to exhaust domestic remedies where a systemic issue appears to curtail the Convention rights. In § 125 of the judgment, the Court highlighted its standing case law, according to which ‘the rule does not in principle apply where the applicant Government … complain[s] of a practice as such, with the aim of preventing its continuation or recurrence, but does not ask … the Court to give a decision on each of the cases put forward as proof or illustrations of that practice’.
In establishing the existence of an administrative practice, the Court will not rely on the concept that the burden of proof is borne by one or other of the two Governments concerned, but will rather study all the material before it, from whatever source it originates. In addition, the conduct of the parties in relation to the Court’s efforts to obtain evidence may constitute an element to be taken into account.
The sheer existence of a large number of individual applications pouring in from a State, can, in the opinion of the authors, be used as indicative of an administrative practice within the meaning of its case law on the exhaustion of domestic remedies. Arguably, they can help shoulder the burden of proving, at least prima facie, that the smoke actually comes from a fire.
No inter-State application in Strasbourg has failed to overcome the admissibility stage. Only in one instance has an application passed the hurdle of admissibility merely in part: in the second Greece v United Kingdom case, where Greece complained about the ill-treatment of 49 individuals, some of the individuals concerned had failed to exhaust domestic remedies. The case took place at a time when the Convention bodies had not yet developed the exceptions to the rule. Applying the standards developed in the case law of today, the case would be an example of an administrative practice and thus the requirement of the exhaustion of domestic remedies would be dispensed with.
It is also worthwhile recalling that the Court enjoys the discretion to join admissibility issues to the merits, Article 29 § 2 ECHR. It can use this power especially if it there is a prima facie possibility that there are no effective domestic remedies available. In terms of procedural efficiency, it might be even counterproductive to divide the admissibility stage from the merits where admissibility issues are closely linked to the merits. Instead of two rounds of written observations, justice might be served faster with one take.
The Grand Chamber of the Court is not automatically the formation competent to hear inter-State cases. However, the relinquishment to the Grand Chamber has occurred in most cases prior or directly after the admissibility decisions. The Court has recommended that ‘having regard to the priority and sensitive nature of inter-State cases, it may be appropriate for the Chamber to relinquish the case as quickly as possible to the Grand Chamber (para. 19).
As mentioned above, Georgia and Ukraine have made use of its procedural possibilities (see Hill-Cawthorne), based on a number of international instruments, including human rights treaties. First and foremost, the increase of State to State litigation of claims based on human rights treaties is generally a good development for the effective protection of human rights. However, multi-forum litigation may burden the parties as well as the courts and lead to parallel proceedings, inconsistencies and contradictions.
At this point, it is worthwhile to observe that the access to multiple fora, be it judicial or non-judicial, is not a new phenomenon. In the context of individual cases, the ECtHR has been liberal in allowing seemingly similar cases (Folgerø and Others v. Norway, with respect to the United Nations Human Rights Committee; see also Neftyanaya Kompaniya Yukos v. Russia, § 520ff, with regard to various constellations of arbitration proceedings, Mammadov v. Azerbaijan, § 103ff, with respect to the Working Group on Arbitrary Detentionof the Human Rights Council of the United Nations). It has declined to look into the merits of a case where a prior decision on the merits existed at the date on which the Court examined the case Peraldi v. France (dec.), with respect to the Working Group on Arbitrary Detention of the Human Rights Council of the United Nations. The Court has also considered whether the applicant had abused the right of application by concealing the intention to use another international forum, here the ILO Committee on Freedom of Association (National Union of Rail, Maritime and Transport Workers v. The United Kingdom § 48.).
Formally the underlying rule of Article 35 § 2 (b) ECHR applies only to individual cases, not to inter-State applications. Instead, Article 55 ECHR provides that:
The High Contracting Parties agree that, except by special agreement, they will not avail themselves of treaties, conventions or declarations in force between them for the purpose of submitting, by way of petition, a dispute arising out of the interpretation or application of this Convention to a means of settlement other than those provided for in this Convention.
The drafting history of Article 55 ECHR suggests that the provision refers to the dispute settlement possibilities before the ICJ. The 1957 European Convention on the Peaceful Settlement of Conflicts, an agreement conferring jurisdiction to the ICJ within the meaning of Article 36 § 1 ICJ-Statute, clarifies in its Article 28 § 2 that ‘[t]his Convention shall in no way affect the application of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms signed on 4th November 1950, or of the Protocol thereto signed on 20th March 1952.’
In the Cyprus v Turkey proceedings, Turkey unsuccessfully relied on Article 55 ECHR (then Article 62 ECHR) claiming that the United Nations Commission for Missing Persons would deprive the Commission of its jurisdiction (at § 208).
The ECtHR has been deferential in the Georgia v Russia proceedings in the wake of the 2008 armed conflict, however without formal recourse to Article 55 ECHR. The parallel proceedings before the ICJ based upon CERD ended in 2011 with a finding of the lack of jurisdiction. Subsequently, the Strasbourg court held the inter-State application admissible (§ 79, without reference to Article 55 ECHR), a judgment on the merits has not yet been rendered.
The Court has recommended that in inter-State cases, it should ‘remain within the confines of its jurisdiction and as far as possible avoid encroaching upon that of other international bodies’ (para. 27), without mention of Article 55 of the Convention.
The European Court of Justice might as well be another forum within the meaning of Article 55 EHCR. The European Court of Justice has identified the inter-State application as one of the obstacles for the accession of the EU to the ECHR in its Opinion 2/13 (at § 207 et seq.), threatening the autonomy of EU law under Article 344 TFEU. Thus, the matter will have to be dealt with in the new round of accession negotiations which have just begun.
Competing sovereignty claims
The ECtHR is a human rights court, and not a court for rendering judgments on competing sovereignty claims over territory. How should the Court deal with such claims, e.g. in the cases between Russia and Ukraine? The dilemma reminds of the Philippines v China under UNCLOS with the disputed sovereignty over islands and rocks in the South China Sea (see Peter Tzeng on this blog).
It is worthwhile to recall that under Article 33 ECHR, every member State can bring an inter-State application with allegations of human rights violations by (not in) another member State. In fact, this collective guarantee enshrined in the inter-State application is how the system was intended to operate under the initial supervisory setup.
The President of the Court, Linos-Alexandre Sicilianos, wrote extrajudicially that high stakes are not incompatible with the nature, role and mission of the ECtHR as a specialized human rights tribunal: ‘Provided the application is admissible, it is difficult to see how the Court could shy away from its duty of “ensur[ing] the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto” (art.19).’
However, in an earlier series of posts (part 1, part 2) Marko Milanovic offered some reflections on how the Court should avoid dealing with contested sovereignty issues in these cases. He argues that the emphasis should be placed on the de facto control over the territory, rather than which State is the proper sovereign. This is also reflected in the practice by the Court.
One challenge in Ukraine v Russia is which point of time the change of control over Crimea took place. It is undisputed who exercises de facto control over Crimea since mid-March 2014. Crimea is a threshold case as far as the time between February and March 2014 is concerned. For Eastern Ukraine, the issue is illustrated by the work of “Forensic Architecture” concerning the so-called “Battle of Ilovaisk”.Forensic Architecture was commissioned by the European Human Rights Advocacy Centre (EHRAC) and the Ukrainian Legal Advisory Group (ULAG) to gather open source evidence and using machine learning technology for the presence of the Russian military in eastern Ukraine, in support of a legal claim against the Russian and Ukrainian states.
International humanitarian law
Similarly as in the case between Georgia and Russia concerning the 2008 armed conflict, in which the Court has not yet rendered a judgment on the merits, the Court may have to deal with the issue of the relationship between the ECHR and international humanitarian law in the cases between Ukraine and Russia.
Concerns have been voiced that, from the perspective of human rights law, the standard of protection might be unduly lowered if international humanitarian law should prevail. The leading case here is Hassan v United Kingdom, where the Court made an effort to harmonize the requirements of Article 5 ECHR, in essence rules against arbitrary detention, by taking in consideration international humanitarian law. Where the Court exercises its oversight function, some protection is offered, while international humanitarian law itself has not developed strong implementation mechanisms. The question about whether humanitarian law create justiciable individual rights (see Anne Peters here) goes to the heart of the question of how we should conceive of inter-State disputes: are they disputes between States and their rights and obligations, or are they disputes which concern the rights of individuals?
Inter-state and individual claims
As the CDDH points out, on 1 January 2019, more than 8,500 individual applications, representing 17% of the total number of applications pending before the Court, were individual applications arising out of inter-State conflict. However, the Convention does not formally provide for a way to deal with overlapping inter-State and individual applications.
In a press release in late 2018 (press release ECHR 432) the Court broke new ground by procedurally connecting the approximately 5,000 individual applications relating to Eastern Ukraine to the inter-State proceedings Ukraine v Russia (re Eastern Ukraine). The concern that inter-State cases might do away with individual cases, is however, ungrounded. Inter-State cases are, in their very essence, about individual rights, not the rights of the States involved. The just satisfaction judgments in both Cyprus v Turkey (IV) and Georgia v Russia (I) were in fact individual-oriented. It is important for the applicant States to identify the victims in whose favor they are arguing the case. Unlike in the law of diplomatic protection, the primary rule protecting individuals runs parallel with the secondary rule set forth by Article 41 ECHR. The ultimate beneficiary is always the human being, not a State. As the Court stated in Cyprus v. Turkey (just satisfaction): ‘if just satisfaction is afforded in an inter-State case, it should always be done for the benefit of individual victims.’ (§ 46).
Fact-finding is resource demanding. It is even more so if the territory in question was or continues to be the theater of armed conflict. It is no easy task for a busy court with 60,000 pending individual applications. What is more, to the extent that the requirement of exhaustion of domestic remedies is dispensed with, the Court acts in practice as a court of first instance, and cannot rely on the fact-finding by local courts. At the same time, the authority of the Strasbourg machinery depends on objective facts. The challenge is multiplied by the fact that inter-State applications are already voluminous, rendering the dealing with inter-State applications time-consuming.
2019 marked the 50th anniversary of the so-called Greek Case. The country, taken by a military junta in the late 1960s, had fallen into dictatorship. Denmark, Norway, Sweden and The Netherlands can be credited with the step of using the inter-State application, where they had something to lose and nothing to win. The Commission undertook an enormous effort of fact-finding. The Greek case used up almost all resources of the Commission at the time. The Commission heard witnesses. Members of the Commission travelled to Greece. Judge O’Donoghue, who had been member of the Commission in the Greek Case and had travelled to Greece at the time, stated in his dissenting opinion in the 1978 Ireland v United Kingdom case: ‘The value of hearing evidence in a local venue cannot be overestimated. (…) No written description, however colorful, could have been as informative as the visit to Bouboulinos Street in Athens.’
Some of the inter-State proceedings under the ECHR addressed the general human rights situation in a country. Examples are Greece at the end of the 1960s and Turkey in the early 1980s. These examples of public interest litigation resound in today’s action by the Gambia against Myanmar before the ICJ. However, many inter-State applications before the ECtHR has had an underlying conflict about the sovereign status of a territory. The context of such cases has put the Convention bodies in a difficult role.
We have shown that inter-State cases raise important substantive as well as procedural issues. The Court has already had occasion to deal with several of these issues, but many challenges remain. The Plenary of the Court has outlined its policy in its proposal of 5 June 2019, referred to above. However, the Steering Committee for Human Rights will continue work on recommendations in a special Drafting Group. A draft report will be submitted to a high-level expert conference in spring 2021, organized under the auspices of the German Chairmanship of the Committee of Ministers in cooperation with the PluriCourts Centre for the Legitimate Roles of the Judiciary, University of Oslo.